Ann Rostow: Time Slouches On

By Ann Rostow

Time Slouches On

Has it really been only two weeks since last we met, dear readers? It feels like two months, which suggests that our experience of time during the Trump administration may be elongated, like dog years.

I’ve already forgotten half the insane developments of Trump’s first week in office, which I think involved signing a flurry of symbolic executive orders, insulting a number of foreign leaders and reminding a gathering of CIA agents about the time he won Pennsylvania when all the pundits predicted a loss.

More recently, we had the National Prayer Breakfast discussion of the low ratings for Arnold Schwarzenegger, and my favorite, a Black History Month shout out to Frederick Douglass (see page 16) for the “amazing job” he’s been doing. I think we’ve all been noticing lately that Douglass seems to have slavery on the run. And President Lincoln also seems to be in fine form these days. Keep up the good work, guys!

The barrage of incompetent missteps would be enjoyable if it didn’t involve innocent people suddenly barred from the United States, and Navy Seals dead or injured in Yemen. But the successive fiascos have at least restored my ability to watch cable news to some extent. And buried within the muck of recent news was something that passes for a gay rights victory in the miserable context of Trump politics.

As January drew to a close came word that Trump was planning to reverse Obama’s GLBT rights executive order, a policy that banned gay and trans discrimination by federal contractors. That policy, in turn, protects roughly one fifth of the U.S. workforce. Not only was Trump poised to end the policy, said the rumor mill, but he was also considering a new order that would explicitly allow discrimination based on religious freedom.

Happily, however, the rumor was quickly dispelled and the White House issued a statement saying Trump was “determined to protect the rights of all Americans, including the LGBTQ community.” I am waiting for another shoe to drop, but so far it has not. There has been no further talk of religious freedom orders, and even uber Christian Mike Pence told the press that “discrimination has no place in our administration.”

Insiders say we have Ivanka and Jared to thank for preserving the Obama order, but I also read that Trump didn’t really care about bashing our community to begin with and had other things on his mind. I think it’s clear that an antigay executive order, coming on the heels of the refugee ban, would have inflamed the anti-Trump movement like a match in gasoline.

Peloton and Tonic, Please

Don’t think we’re out of the woods, my friends. Not only could some new faith-based fruitcake pop out of the oven, but we also have many battles to fight in the state legislatures and in Congress. That said, Trump’s decision to back away from an explicit attack on our community sends a valuable signal to our foes. Thus far, we’ve seen that Trump’s ascendance has emboldened the far right in a number of areas. But his apparent indifference to gay bashing, or maybe even resistance to homophobia, may conceivably help our side going forward.

Like you, I’m guessing, I have mixed feelings about being spared while immigrants and refugees get the full Trump treatment. It reminds me of the famous poem that begins: “First, they came for the socialists, and I did not speak out, because I was not a socialist … .” I am cheered, however, when I think of the sign held by one of the airport protestors that said: “First, they came for the Muslims, and I said ‘Not Today Motherf—ers!’” That’s the spirit.

I can’t spend another column complaining and ranting, so I will veer off into a tangent, to wit: my dislike for the pretentious “Peloton” commercials. The self-satisfied, competitive, yuppies getting up at dawn to use their special fitness machines are so irritating, I don’t think I’d buy their products if they were selling caviar and champagne. Plus, I suppose there’s an element of ruefulness in my disdain since my mornings are usually spent guzzling black coffee, eating cold slices of pizza, smoking, doing the crossword puzzle and trying to decide whether or not to finish off the dregs of last night’s cognac. Hey, I rarely do that. It’s never any good.

It’s not just the fitness and the healthy mornings. It’s the complacency of it all. And it’s the cutthroat desire to outrun the other smug people on the Peloton rider list. Who wants to start their day with that kind of vicious energy? For the record, the old cognac is okay if it was poured after midnight. And you can also just dump it in your coffee. I hate to waste it. Someone should invent a competitive morning video game for people like me:

“Marjorie has taken the lead by fixing a Bloody Mary. It’s only seven am!”

“Ann has pulled ahead by going back to bed!”

“Janice is taking a bubble bath with a pitcher of margaritas and a Cuban cigar. Can anyone catch her?”

Picking Our Battles

So, let’s talk about Neil Gorsuch.

Here’s the problem. The man is very qualified, and with the glaring exception of Merrick Garland, the Senate has a tradition of confirming qualified High Court nominees, unless their views are demonstrably bizarre. Gorsuch does not have much of a public stance on GLBT law, but he is strongly in favor of allowing religious actors to circumvent public policies that they claim may conflict with their faith. Not only did he write the 10th Circuit opinion in favor of Hobby Lobby’s right to avoid providing contraceptives under Obamacare, but he also sided with the Little Sisters of the Poor, a group that objected to filling out a simple government form connected with health insurance.

He is also on record bemoaning the fact that activists rely more on the courts than on the legislative or electoral process, even though such avenues are often closed to civil rights complaints and even though the courts are the obvious venue for protecting civil rights in the first place.

On the positive side, Joshua Goodbaum, one of Gorsuch’s former clerks who is gay, says he never heard an antigay word from the judge, who congratulated him on his (same-sex) marriage and called it “a wonderful thing.” Gorsuch is also reportedly kind, smart, humble and thoughtful. That’s nice, I suppose.

Here’s the thing. We’re not going to get a moderate nominee out of Donald Trump, and there were worse names on his short list for the Supreme Court. William Pryor, for example, is an outspoken enemy of the GLBT community and would have been a flat out disaster. Democrats are therefore probably wise to avoid a filibuster, confirm Gorsuch, and maintain the 60-vote requirement for Senate confirmation. If Democrats force the GOP to “go nuclear” and rewrite Senate rules so that only a bare majority is needed to confirm a justice, someone like Pryor could sail through if Trump gets a second High Court pick.

If, on the other hand, Democrats maintain the status quo, the High Court balance remains unchanged from Scalia days. We can then hope that Trump does not get the chance to make another nomination, but if he does, he will at least have to think about the hazards of winning Senate confirmation without Democratic support.

But-but-but, I can hear you, what about what they did to us by refusing to take a vote on Merrick Garland! We can’t let that stand! Well, I totally agree. Yet we can’t hold up a nominee for four years. I suspect there will come a time when the shoe is on the other foot and a Republican president seeks to fill an open seat on the High Court in his or her last year in office. If Democrats have the power, they will have the chance to exact revenge for Merrick Garland. His name will not be forgotten anytime soon.

Arguments Set For High Court Transgender Case

Whatever happens, Gorsuch will not be confirmed in time to hear oral arguments in the transgender rights case, Gloucester County School Board v GG. These have been scheduled for March 28. That means our Fourth Circuit victory will be heard by the eight-member Court. A tie will confirm the Fourth Circuit’s trans-friendly opinion, although it will not create binding law. And if Justice Kennedy were to vote with his four liberal colleagues, we might luck into a major High Court precedent.

But it’s also possible that the case, ostensibly an examination of the scope of Title IX’s ban on sex discrimination in public schools, will be focused on another issue. The Fourth Circuit panel relied on the Obama administration’s interpretation of Title IX, concluding that it was bound to follow the Education Department’s (pro-transgender) reasoning. In accepting review, the High Court indicated it would evaluate how much deference courts owe to government agency guidelines when the law these agencies enforce is ambiguous.

So guess who believes strongly that courts should not be obliged to follow the wisdom of government lawyers and bureaucrats? Neil Gorsuch! In fact, it’s one of his pet peeves, from what I can tell. This makes me wonder whether or not the justices will take his views into account as, I don’t know, a friendly gesture? Alternatively, perhaps they’ll quickly rule another way before he can take his seat.

I keep reading that Gorsuch’s view on this question is conservative, but it seems to me that courts should decide the law, taking agency interpretations into account, but not necessarily being bound by what is essentially an executive branch opinion. The executive branch changes every four or eight years buffeted by political winds. Why should political appointees decide whether or not Title IX’s ban on sex discrimination means that schools must let transgender kids use the facilities they prefer? I liked the answer given by the Obama contingent and embraced by the Fourth Circuit. But I might not like the version of Title IX that emerges from a Trump cabinet.

Will SCOTUS Take the Cake?

Finally, New York Law School Professor Art Leonard writes that the High Court has shown an interest in Masterpiece Cakeshop v Colorado Civil Rights Commission. Yes, this is one of the antigay bakers who got bailed for rejecting a gay wedding client in defiance of the state anti discrimination law. The High Court has already rejected one of these cases involving an antigay photographer out of New Mexico, but according to Leonard, the justices have requested the lower court record in Masterpiece Cakeshop, which apparently signals serious consideration.

If the Court were to take this case, and if Gorsuch were confirmed, it might get very ugly indeed. Gorsuch (who is referred to as “Grouch” by my automatic spell checker) seems likely to advocate extreme deference to religious freedom, and could easily rule that Mom and Pop businesses have every right to discriminate against GLBT clients, regardless of state civil rights laws. Writing for the Hobby Lobby majority at the High Court, Justice Alito made clear that religious beliefs were not enough to justify ignoring civil rights laws, using the example of laws that prohibit race bias in the workplace. But how about civil rights laws that prohibit gay bias in public accommodation? Would those take precedence over faith-based objections as well? Maybe not.

Finally, I was just reading a piece by Michelangelo Signorile, who considers whether Gorsuch, like Scalia, believes that states should have the right to outlaw consensual, adult private sex between same-sex partners. Gorsuch, like Scalia, is an originalist, looking to the intent of the founding fathers for insight into the meaning of the Constitution.

Perhaps I’m just being optimistic, but I don’t think the man who might be our first GenX justice would go there. Scalia’s antigay positions were not simply based on originalism. He was viscerally antigay and saw little difference between a government ban on gay sex and a government ban on child molestation. We were perverts to him, unnatural and immoral, and rightly regulated by a disgusted majority. I can’t guarantee that Gorsuch wouldn’t side with Scalia in an imaginary repeat of Lawrence v Texas, but somehow I don’t think he would.

That said, the GLBT rights cases of the future are a different kettle of fish, and it seems unlikely that Gorsuch would put the interests of gay customers ahead of Christian bakers.